FROM ISSUE NUMBER 2 ~ WINTER 2010 GO TO TABLE OF CONTENTS
The Future of Blame
A distinguished American lawyer once remarked that "man is in no sense the maker of himself and has no more power than any other machine to escape the law of cause and effect." The speaker was Clarence Darrow, who, 80 years ago, was trying to help Nathan Leopold and Richard Loeb escape the death penalty for having murdered Bobby Franks in cold blood. "Each act, criminal or otherwise, follows a cause," Darrow continued, and "given the same conditions the same result will follow forever and ever."
The argument that people are essentially machines has gained greater traction in our time, thanks in no small part to our improved scientific understanding of how genes shape our minds, and of how our minds shape our behavior. We have long known that genes completely control the color of our eyes, help to determine our intelligence, and play a major role in the emergence of countless traits, conditions, and diseases. But of late we have also learned that genes heavily influence our personalities, our attitudes toward religion and morality, and even our political ideologies. Developments in neuroscience, meanwhile, have pointed to strong correlations between the structure of a person's brain and the character of his judgments and actions.
These developments raise questions that go to the heart of our moral and legal systems. Does the fact that biology determines more of our thinking and conduct than we had previously imagined undermine the notion of free will? And does this possibility in turn undermine, if not destroy entirely, our ability to hold people accountable for their actions? The answer must of course be informed by what science now tells us. But above all, it demands that we honestly reassess the assumptions underlying our systems of ethics and justice.
It turns out, though, that those assumptions are far less vulnerable to advances in modern science than they might first appear. And therefore the answer to the question of accountability would seem to be the same today as it was when Clarence Darrow raised it eight decades ago: No. New advances do not render irrelevant or unjust our ways of holding people responsible for their behavior.
No serious scientist claims that modern biology can now offer us a complete explanation of human behavior, or a foolproof code for predicting human judgments and actions. Our knowledge of our genes and our brains is just too limited. Duke University professor David Goldstein, a leading population geneticist, has noted that so far even the effort to find the genes that explain common diseases has borne very little fruit. We know that type 2 diabetes is heritable, but so far the genes known to be linked to it explain only 2 or 3% of the disparity in different people's odds of getting the disease. Harvard professor Steven Pinker recently wrote in the New York Times Magazine about having his own genome completely analyzed; among the lessons he learned is just how far we are from translating maps of genes into useful explanations or predictions regarding our bodily selves. Height, for example, is almost entirely inherited, but we do not understand the genetic mechanism by which it is passed along, and what we do know so far explains just 2% of the height differences among people. Intelligence, too, is largely inherited, but the gene with the biggest known effect on brainpower accounts for only one-quarter of an IQ point. As Pinker observes, genes affect the probability we will have some trait, but no one gene — or even a package of genes — simply explains the trait's existence.
Similarly, the study of the brain has offered some fascinating insight into the neurobiological correlates of certain behaviors, but it cannot at this point claim to offer anything approaching a predictive model of behavior. So while we are in a golden age of neuroscience — and while we certainly know far more about the brain and its workings than ever before — we are far from reducing human actions and choices to maps of neural activity.
Some argue that such explanatory power might in fact never be possible — either because some ephemeral, overarching element of human consciousness (call it a soul) cannot be reduced to the mere electrochemical processes of the brain, or because the full complexity of those processes will never be entirely accessible to science.
But our approach to the question of modern biology and free will cannot begin by assuming that science will not get far enough to force the issue. We need to take seriously the possibility that it will. After all, 60 years ago, we had no idea what DNA looked like. Ten years ago, we had not unraveled a single human genome. Advances in neuroimaging over the past two decades make the techniques of the 1980s seem primitive. There is every reason to expect continued progress, and it may well be that, over time, human behavior will prove far more accessible to scientific explanation than it appears today.
We can already begin to see the spheres of human action in which this possibility may first become a reality. Societies have long known, for instance, that young men are responsible for far more crimes than other groups of people. Today we know that about 6% of all males commit between one-half and two-thirds of all violent crimes. Studies supporting this finding have been conducted in jurisdictions as far-flung as Denmark; New Zealand; Philadelphia; Racine, Wisconsin; and Orange County, California. Research also tells us that criminal males often have childhood conduct disorders, and that many are psychopathic — not merely violent but also arrogant, deceitful, and lacking in any emotional attachment to others.
Given most people's experience, the fact that men — especially young men — are more violent than women would seem to be plain common sense. In the present state of research the relationship is actually just a statistical correlation. But suppose that it were much more: that by tracing levels of hormones and neurotransmitters, science could show just why and how young men — and even which young men in particular — are far more prone to violence than other human beings.
We have good reasons for thinking that neuroscience will someday do just that. Dr. Louann Brizendine, a neuropsychiatrist at the University of California, San Francisco, has summarized the evidence we have so far: The part of the brain that stimulates our anger and aggression (the amygdala) is much larger in men than in women, while the part of the brain that restrains anger (the prefrontal cortex) is smaller in men than in women. The areas of the brain that influence aggression are also much larger in men than in women; newborn boys are much less interested in the cries of other babies than are newborn girls; very young boys are much more likely to disobey their mothers than are girls; and the testosterone in boys' brains makes them much more aggressive and less interested in talking or in social connections than (largely) testosterone-free girls. All the evidence points in one direction: Men, by no choice of their own, are far more prone to violence and far less capable of self-restraint than women.
Given the apparent speed with which genetic analysis and neuroscience are advancing, it may be possible in the near future to explain aggressive or criminal behavior in far more detail still. We may be able to show, for instance, that particular men — as distinguished by neurological or genetic traits — are especially prone to certain violent behaviors. Some neuroscientists think that, with time, such traits may even be used to explain behavior and judgment more generally. We already know that different areas of the brain "light up" (that is, acquire increased blood flow) as people judge moral questions; it may turn out that different people are powerfully predisposed by their neurobiology to different kinds of judgments. As Patricia Churchland of the University of California, San Diego, has put it: "As we understand more about the details of the regulatory systems in the brain and how decisions emerge in neural networks, it is increasingly evident that moral standards, practices, and policies reside in our neurobiology."
If this claim turns out to be true, how will it affect our judgment of free will? And what will become of our system of justice, grounded as it is in the notion of individual responsibility? Will understanding human behavior at the level of genetics and neurobiology make it unreasonable or impossible to hold people accountable for what they do?
THE SOCIAL ANIMAL
To deal with these questions, we must begin by acknowledging that our laws are meant to serve the needs of a society, not just of the individuals within it. As every philosopher since Aristotle has recognized, humans are social animals. What we do depends not only on who we are, but also on whom we know and to whom we respond.
In order to show that no explanation of human behavior can neglect the social setting in which it takes place, Stephen Morse of the University of Pennsylvania Law School often asks his audiences to stand and raise one arm. Almost everyone does. He then asks them to lower their arms and to sit down. They do. Assume for the moment that all of his listeners' behavior has been explained by their genetic makeups or through scans of their brains. They still stand and sit when politely asked. Even if biology explains their social nature, it is precisely this social nature that means their behavior will always be moved by more than biology alone.
Understanding human behavior therefore requires that we understand not only how people are shaped by their genetic makeups, their acquired psychological experiences, and the ways in which their brains work, but also how they respond to the behavior of people around them. Very little human activity is driven exclusively by impulses from within. A lone, sober juvenile rarely creates a threatening disturbance, but a group of juveniles often will. Many motorists drive faster than the speed limit, but few motorists will speed when they are being followed by a police car. Our natural predispositions always interact with our social environment and our systems of rules and norms.
A good illustration of how social and genetic factors interact to shape behavior can be found in the work of Duke University's Terrie Moffitt. In her study of a group of boys growing up in Dunedin, New Zealand, Moffitt discovered that those children who had a certain variant of the monoamine oxidase A gene were much more likely to become anti-social if they had been severely maltreated by their parents. On the other hand, among boys who had the same version of the MAOA gene but did not experience severe parental maltreatment, the level of anti-social behavior was much lower. It turns out that biology and environment interact; the boys' genetic makeup influenced their responses to certain kinds of social pressures.
Since a society is far more than the sum of the individuals within it, no understanding of individual genes and brains — however sophisticated — could fully encompass all human behavior. And the fact that our behavior is always shaped by the social environment in which it takes place — even when it is also influenced by genetic factors — is an important justification for a system of law grounded in personal accountability. After all, the law — especially its attitudes toward fault and responsibility — helps to shape the social environment that interacts with our natural predispositions. An enormous amount of what we do in life is a response to what others ask or expect of us; by setting clear, strictly enforced standards of behavior agreed upon by all of society, the law can play an instructive role unmatched by almost any other social institution.
It therefore makes sense for the law to hold people accountable even for some actions that are clearly involuntary. A person driving a car who suffers a grand mal epileptic seizure will lose control of the vehicle and may well kill somebody. The law will take his condition into account in assigning fault, but this does not mean that the driver will bear zero responsibility for his actions. The driver must take some blame — though probably a lesser charge than murder — in order to make clear the value of the human lives he has destroyed. He must take even more blame if he knew that he had epilepsy (and almost everyone will know this long before applying for a driver's license) and drove anyway. In that case, the driver will generally be found guilty of reckless endangerment; he should have known better than to expose others to the dangers posed by his condition. One way the law helps him to know better is by setting out clear consequences for such actions.
Another way our system of assigning responsibility and blame takes account of human free will is by shaping how people think about what they do and do not want. Princeton philosopher Harry Frankfurt notes that while being moved by desires is not a uniquely willful or even a uniquely human trait, human beings are distinguished by having preferences about what they ought to desire — preferences that transform the relationship between behavior and responsibility.
Frankfurt offers an example: Imagine that there are three men, each equally addicted to dangerous drugs. The first desperately wishes he were not addicted and fights, unsuccessfully, to overcome his dependency. The second does not mind being addicted and does nothing to overcome it. The third is delighted with his addiction and revels in it. All three are in a very similar biological state — a physical addiction. It may even be that their attitudes about that state are significantly determined by their biology, too. But these attitudes are not completely determined. We all know people who have radically changed their attitudes about their own self-destructive behavior. The degree to which people exhibit this desire for self-improvement is often highly relevant to how society will think of them — and therefore to how the law will judge them.
In Frankfurt's view, these three men have free will in the sense that each is "free to want what he wants to want." One man wants to overcome addiction, the second is content with it, and the third greatly enjoys it. Someday soon we may be able to explain the addiction, and perhaps even their differing attitudes, through genetics and neuroscience. But if we could, should it make any difference to society at large?
The answer depends on one's view of the ultimate purpose of the law. If one believes that the criminal law should punish addiction because it is wrong, all three would be penalized. If one thinks the criminal law should attempt to deter addiction so that people will be encouraged to avoid it, all would still be punished, but the first man less seriously than the other two. If one's opinion is that we should rehabilitate offenders, then the first man would be required to enter a treatment program while the other two would be sent to jail. And if one is of the mind that we should never punish addiction, we would take action against none of the men.
The difference in our treatment of the three men may be influenced by our growing understanding of addiction as a physiological matter, but it will have far more to do with whether we think addiction creates problems for society. If the answer is yes, the next step is to determine how the problem ought to be managed: by isolating addicts from everyone else (we call this incapacitation); discouraging others from becoming addicts (deterrence); changing a person's addiction level (rehabilitation); or expressing and reinforcing society's objections to addiction (retribution). The law can pursue any combination of these four different responses to the problem of addiction — but all of them represent views about how to shape choices and behavior, grounded in the understanding that attitude matters.
Some people — perhaps influenced by our growing understanding of the biological determinants of behavior — believe that incapacitation, deterrence, and rehabilitation may be reasonable justifications for punishment, but that retribution never is. The first three, they argue, are efforts to protect individuals and society and can be defended on practical grounds: If the benefits to society exceed the costs, then we are helping law-abiding people by punishing or changing law-breaking people. Retribution, however, can only be an error: It is merely a denunciation of behavior. Punishing people on retributive grounds is of no practical value to society.
This view is, quite frankly, mistaken — and for reasons that remain undiminished by advances in our understanding of the biology of behavior. Consider the example of rape. Suppose neuroscience discovers a pill that, when swallowed, will reduce to zero the likelihood that a convicted rapist will ever rape again. We would still want to arrest rapists, of course; but once convicted, a rapist's only punishment would be the pill. In this scenario, the benefits to society would be great, and the cost would be rather small.
Except, that is, to a victim of rape. She would think that a violent attack on her person surely deserves a stronger penalty than swallowing a pill, and much of society would too. The rapist must therefore be punished in order to achieve two goals: first, inflicting harm on the rapist that somehow corresponds to the harm the victim has suffered, and second, reinforcing society's view that rape is wrong. In short, punishment for a serious crime should have a retributive component.
This is how most people tend to think about matters of crime and punishment. Scholars like to argue for or against a particular theory of punishment, but legislators, judges, and the public generally link all four justifications together. A punishment is fitting only if it incapacitates known offenders, deters would-be offenders, increases the chances of rehabilitating offenders, and expresses a solemn moral judgment about the wrongness of the criminal act. This four-pronged approach to punishment is deeply grounded in a belief in free will and personal responsibility — and yet would not be significantly undermined by advances in biology that explained more of human behavior in genetic or neurological terms.
Society can, and should, still punish people even if neuroscience has fully explained their actions. We all know, and the common law clearly recognizes, that a person may not be guilty of a crime if he acted under duress — but we also know that there are limits to what duress can justify. A person may be forced at gunpoint to drive a robber to a bank, but ordinarily he would not be held guilty of the robbery that ensues. On the other hand, if he were forced at gunpoint to deliberately kill an innocent person, he could be judged guilty of the killing. Duress is one of many factors a judge and jury might consider, not an all-encompassing excuse.
So too with biological predispositions. Some people may have genetic makeups that exert tremendous pressure on their choices: A young man loaded with testosterone, lacking interest in other people, and driven by passion rather than reflection may find it much harder to avoid crime than a young woman who has little testosterone, is closely attached to others, and is shy about acting impulsively. To avoid criminal behavior, the male has to climb a steeper hill than the female. It may therefore seem unfair for the law to treat their behavior equally.
But it is actually the man who benefits more from a system of laws that attributes blame and responsibility. Because he must climb the steeper hill, he is in greater need of the incentive and guidance the law will provide. If the hill were made flat to save him from the unfair exertion — such that each person was expected to behave only as biology might direct — we would make life only superficially easier for our aggressive young man, and much harder for both the better-behaved woman and for society more broadly. For if we allow ourselves to think that explaining behavior justifies it, then we will have reduced the incentives for people who are likely to behave wrongly to avoid bad behavior. We will also have eliminated the benefits of having people who are not likely to misbehave believe that they are doing the right things.
This final point is crucial. A system of laws rooted in the assumption of personal responsibility and accountability helps us define not only bad behavior but also good. If we believe modern science has explained malevolent behavior, we must also argue that it has explained praiseworthy behavior. Virtue then becomes just as meaningless as depravity — a state of affairs in which no society could hope to remain ordered or healthy.
PRAISE AND BLAME
As the philosopher Isaiah Berlin put it, scientific determinism would render both indignation and admiration irrational and obsolete. Were we to withhold our disapproval of criminals, we would have to stifle the praise we give to heroes. If science tells us why Charles Manson or Lyle Menendez acted as they did, it will also tell us why Nelson Mandela or Mother Teresa acted as they did — and will in fact suggest that they could hardly have done otherwise.
However far science may go toward explaining the behavior of individuals, it will not make will, fault, and choice irrelevant to society. To accept the proposition that determinism is a higher road to justice and fairness would lead us into an empty world — one devoid not only of transgression, but also of virtue, forgiveness, and redemption. As Berlin put it, "the entire vocabulary of human relations would suffer radical change." It might well be the most profound change in human thinking since mankind first began to contemplate the meaning of our conduct. If we can neither blame nor praise, then the concepts of personal morality and human freedom will be lost — and with them much of what they have gained for us over several millennia.
It would be a profound mistake to believe that science has made such a change unavoidable. For all the advances in neurobiology and genetics — and for all the many sure to come — we are nowhere near a refutation of the basic fairness of a system of laws that takes free will seriously, and treats human beings as responsible agents. Those who believe such a change is at hand are not better informed about the science involved; they are just not informed enough about the practical and philosophical foundations of our morality and justice.
James Q. Wilson teaches at Pepperdine University and Boston College, and is the author of The Moral Sense and other books.